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Hardy Burlingham Mining Co. v. Sawyer

January 16, 1953

HARDY BURLINGHAM MINING CO.
v.
SAWYER ET AL.



Moremen

MOREMEN, Justice. This is an appeal from a judgment of the Perry Circuit Court which dismissed the petition of appellant, Hardy Burlingham Mining Company, and upheld an award by the Workmen's Compensation Board to appellee, William M. Sawyer.

Appellee is a miner who worked for appellant under the provisions of the Workmen's Compensation Act, KRS 342.001 et seq.

On September 29, 1943, as a result of a mining accident, appellee lost the sight of his right eye. For this, he was adjudged twenty per cent permanently, partially disabled. He returned to work.

On May 7, 1948, appellee was loading coal when a mine car ran off the track and crushed him against the face of the coal bank. Both large bones in his right leg were broken. The leg refused to respond to treatment. The fractures were never successfully reduced although both screws and bone grafts were sued. The leg bends upon manipulation; has a circumference of on and one-half inches less than the left leg, and requires a brace. Appellee walks with the aid of crutches.

Appellee filed claim for compensation against appellant. The Commissioner of Industrial Relations and the Subsequent Injury Fund were joined as defendants. The referee found that appellee's disability, as the result of the injury of May 7, 1948, was eighty per cent to the body as a whole plus twenty per cent disability for a former injury, or total disability. The referee was of opinion that the Subsequent Injury Fund was liable only when the last injury combined with the former injury or injuries produced a greater disability than would have resulted from the subsequent injury alone, and held that the injury to his leg would have prevented appellee from performing any type of manual labor regardless of whether or not he had lost an eye by a former injury, and concluded that the Subsequent Injury Fund was not liable for any of appellee's disability.

Upon review by the full board certain modifications of the referee's report were made and the board held that the last accident alone of appellee had caused him to suffer total and permanent disability. Appellant filed a petition for review in the Circuit Court where the award was upheld and the petition dismissed.

Appellant urges three grounds for reversal: (1) the board's finding of a twenty per cent permanent disability due to a back injury is not supported by the evidence; (2) appellant should not be held liable for compensation for a hundred per cent permanent disability; (3) Dr. Coldiron's deposition was not admissible.

We have been unable to find in the opinion and order of the full board where it fixed permanent disability due to a back injury at twenty per cent. The order does say, 'We have carefully examined the evidence, and we find that there is quite sufficient evidence in the record to indicate that the last accident of the plaintiff, resulting in injuries to the leg and lower back, caused him to suffer total and permanent disability.' But in the same opinion and order, and evidently in response to criticism of the referee's report, the board says this: 'The defendant further complains of the mathematical calculations the Referee made in his opinion and award, in allowing a specific percentage of disability for the injury to the leg, to the back and to the eye. We do not undertake to discuss here whether or not these percentages are correct, because, as we have previously said, the evidence is such as to warrant a finding that the plaintiff, as a result of the last injury, was totally and permanently disabled.'

We are therefore confronted only with the question of whether or not there was sufficient evidence to support the board's finding that appellee was totally and permanently disabled because of the second accident. Dr. Coldiron testified:

'Q. 49. Is this man, in his present condition, as you found it, able to do any work? A. No, sir.

'Q. 50. Are you in a position to state the extent of his disability? A. In my opinion he is totally and permanently disabled from performing any type of manual labor.

'Q. 51. What percentage of that disability is due to the loss of the eye and what is due to his other injuries? A. Well, just offhand I would say that I believe I would allow under 20% for the loss of the eye.

'Q. 52. And would you say that the other 80% is to the body as ...


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